COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Fitzpatrick 

Argued at Alexandria, Virginia 

CECIL ADRIAN ALLISON 

v. Record No. 0792-94-4 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA OCTOBER 17, 1995 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 Alexander N. Levay, Public Defender (Lorie E. 

O'Donnell, Assistant Public Defender; Office 

of the Public Defender, on briefs), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Robert B. Condon, Assistant Attorney General, 

on brief), for appellee. 

 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 

 Cecil Adrian Allison (appellant) was convicted in a jury 

trial of first-degree murder, use of a firearm in the commission 

of a felony, malicious wounding, possession of a firearm by a 

convicted felon, and possession of a sawed-off shotgun. On 

appeal, he argues that the trial court erred in: (1) denying his 

motion to sever the possession of a firearm by a convicted felon 

charge from the other charges; (2) denying his motion to set 

aside the verdict when the jury considered evidence aliunde; and 

(3) prohibiting his psychological expert from testifying about 

appellant's statements during the clinical interview. We reverse 

and remand because the trial court erred in denying appellant's 

motion to sever. We affirm on the expert testimony issue. We do 
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not address the jury issue because it is not likely to arise on 

retrial, and thus, our remand renders it moot. 

 BACKGROUND

 Appellant and his wife, Juanita Allison (decedent), 

separated in the spring of 1992. On June 4, 1992, decedent 

attended a party at the home of David Pollen (Pollen). At 10:30 

p.m., decedent and other guests left the party and went to 

Magpie's, a restaurant in Middleburg. Pollen stayed home and 

went to bed. Shortly after going to bed, Pollen awoke to find 

appellant inside his residence. Appellant struck Pollen on the 

head, rendering him temporarily unconscious. When Pollen 

regained consciousness, appellant was dragging him by his feet 

across the floor. Pollen struggled free and ran outside. 

Appellant chased him and shot at him with a sawed-off shotgun. 

Appellant then went to Magpie's, where he shot his wife once in 

the back of the head using a .22 caliber rifle with a telescopic 

sight. At trial, the jury found appellant guilty on all counts 

and sentenced him to life plus fourteen years in the state 

penitentiary. 

MOTION TO SEVER

 Appellant argues that the trial court erred in denying his 

motion to sever the charge of possession of a firearm by a 

convicted felon from the remaining charges. 

 Rule 3A:10(b) provides as follows: 

 The court may direct that an accused be 

tried at one time for all offenses then 

pending against him, if justice does not 
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require separate trials and (i) the offenses 

meet the requirements of Rule 3A:6(b) or (ii) 

the accused and the Commonwealth's attorney 

consent thereto. 

"Justice often requires separate trials where highly prejudicial 

evidence of one of the crimes is not admissible in the trial of 

the other." Long v. Commonwealth, 20 Va. App. 223, 226, 456 

S.E.2d 138, 139 (1995). "Generally, evidence of other offenses 

is inadmissible if it is offered merely to show that an accused 

was likely to commit the crime for which he is being tried." 

Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599, 603 

(1990). The exceptions to the general rule allow evidence of 

other offenses where the evidence "tends to prove any relevant 

element of the offense charged . . . [or] where the motive, 

intent or knowledge of the accused is involved." Id. at 34, 393 

S.E.2d at 603 (quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 

272, 176 S.E.2d 802, 805 (1970)). 

 In Long, the defendant was charged with possession of 

heroin, possession of a firearm while in the possession of 

heroin, and possession of a firearm after having been convicted 

of a felony. 20 Va. App. at 225, 456 S.E.2d at 138-39. The 

trial court denied Long's motion to sever the possession of a 

firearm after having been convicted of a felony charge. This 

Court reversed the trial court: 

 When the jury hears that a defendant has 

been convicted of a felony, a fact not 

probative of an element of the offense being 

tried, the evidence has a tendency to 

prejudice the defendant in the minds of the 

jurors. The admission of the felony 
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conviction is suggestive of the defendant's 

criminal propensity and tends to adversely 

affect his presumption of innocence. 

Id. at 227, 456 S.E.2d at 139. 

 This Court's recent decision in Long controls this case. 

The trial court erred when it denied appellant's motion to sever 

the possession of a firearm by a convicted felon charge. 

Appellant's prior felony was an element of the firearm possession 

charge but not an element of the murder charge. The prior felony 

was not relevant to the murder charge and the fact that appellant 

was a felon only served to prejudice the jury. As in Long, 

despite an abundance of evidence to support the conviction, the 

error cannot be deemed harmless because of the effect on the 

length of the sentence imposed by the jury. 

 EXPERT TESTIMONY

 Appellant also argues that the trial court erred in 

excluding statements he made to Dr. John Wires, a clinical 

psychologist, during an evaluation. Because this issue is one 

that is likely to arise on retrial, we must address it. 

 During a pretrial hearing, appellant argued that the trial 

court should allow Dr. Wires to testify about statements 

appellant made during a clinical interview and then render an 

opinion based on those statements. The statements reflected 

appellant's version of what he did and observed the night he 

killed his wife, and what circumstances caused him to kill his 

wife. Appellant sought to have Dr. Wires testify about: (1) his 
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wife's taunting concerning his sexual performance; (2) his wife's 

infidelity; (3) the couple's alcoholism; and (4) the 

circumstances surrounding the couple's separation. The trial 

court held that it would allow Dr. Wires and other experts to 

testify, "subject to a proper limiting instruction and to the 

rule of relevancy, as to the history which they took in the 

course of their examinations." However, the trial court ruled 

that "any opinions which they will render must be based upon 

their own personal observations or on the evidence adduced at 

trial." (Emphasis in original). 

 "'The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion.'" Crews v. 

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994) 

(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 

838, 842 (1988)). "[E]xperts in criminal cases must testify on 

the basis of their own personal observations or on the basis of 

evidence adduced at trial." Buchanan v. Commonwealth, 238 Va. 

389, 416, 384 S.E.2d 757, 773 (1989), cert. denied, 493 U.S. 1063 

(1990). "As a general rule in this Commonwealth in a criminal 

case, an expert may not 'base his opinion on facts not in 

evidence.'" Papuchis v. Commonwealth, 15 Va. App. 281, 283-84, 

422 S.E.2d 419, 421 (1992) (quoting Simpson v. Commonwealth, 227 

Va. 557, 565, 318 S.E.2d 386, 391 (1984)). 

 In this case, the trial court correctly found that 
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appellant's statements to Dr. Wires regarding the details of the 

offenses and his state of mind were inadmissible hearsay. 

Appellant's statements to Dr. Wires were not the doctor's 

"personal observations" from the testing and evaluation of 

appellant, but statements of fact by appellant. The statements 

were also not "evidence adduced at trial" because appellant did 

not testify. Additionally, the trial court allowed Dr. Wires to 

express an opinion regarding appellant's insanity in response to 

hypothetical questions by appellant. We hold that no abuse of 

discretion occurred. 

 Appellant argues that the trial court should have allowed 

Dr. Wires to "give testimony and render an opinion or draw 

inferences from facts, circumstances or data made known to or 

perceived by . . . [him] at or before the hearing or trial." 

Code § 8.01-401.1.1

 However, numerous cases have reaffirmed the 

principle that experts in criminal cases may only testify based 

 

 1Code § 8.01-401.1 provides as follows: 

 In any civil action any expert witness 

may give testimony and render an opinion or 

draw inferences from facts, circumstances or 

data made known to or perceived by such 

witness at or before the hearing or trial 

during which he is called upon to testify. 

The facts, circumstances or data relied upon 

by such witness in forming an opinion or 

drawing inferences, if of a type normally 

relied upon by others in the particular field 

of expertise in forming opinions and drawing 

inferences, need not be admissible in 

evidence. 

(Emphasis added). 
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upon their personal observations or facts in evidence. See, 

e.g., Wright v. Commonwealth, 245 Va. 177, 197, 427 S.E.2d 379, 

392 (1993), cert. granted and judgment vacated on other grounds, 

___ U.S. ___, 114 S. Ct. 2701 (1994). We conclude that the trial 

court's ruling in this case was correct. 

 Accordingly, we reverse because of the failure to sever the 

possession of a firearm by a convicted felon charge and remand 

for further proceedings consistent with this opinion. 

 Affirmed in part,

reversed in part,

and remanded.